Appealing a MIOSHA Citation

construction worker on hi-lo
September 13, 2017

Employers should not hesitate to appeal alleged MIOSHA citations that the employer believes are unwarranted. Accepting an alleged MIOSHA citation that is not justified can create problems in the future for an employer. Here are the steps:

  1. Within 15 working days of receipt of a citation, an employer can appeal the citations, and/or the penalties, and/or the time required for abatement. The employer must post a copy of the citation at its workplace bulletin board or other area where employees can see the citation. This First Appeal is an appeal to the MIOSHA division that issued the citation. The appeal should be mailed to MIOSHA by registered or overnight mail to have a record of its delivery to MIOSHA. (Note: This First Appeal and, generally, all subsequent documents that are filed relating to the Appeal will need to be posted at the employer’s workplace to inform interested employees.) A late appeal will only be considered if the employer demonstrates good cause for failing to meet the deadline, and that the employer has a meritorious defense.
     
  2. MIOSHA has 15 working days in which to respond to the appeal. If MIOSHA denies an employer’s First Appeal, the employer can file a Second Appeal within 15 working days of MIOSHA’s decision. The filing of a Second Appeal starts the Administrative Hearing process. This process includes a Prehearing Conference conducted by the MIOSHA Appeals Division. A Prehearing Conference is an informal meeting in which the employer and MIOSHA discuss the alleged citation and attempt to resolve and enter into a settlement of the employer’s appeal.
     
  3. If MIOSHA and an employer cannot reach a settlement, the case will be scheduled for a hearing/trial before an Administrative Law Judge (ALJ). MIOSHA has the burden of proof with respect to the alleged citations. Witnesses will normally testify and evidence will be presented at the hearing/trial. The ALJ will issue a decision/report after the hearing. The Board of Health and Safety Compliance and Appeals may affirm, modify, or vacate the proposed report of the ALJ. An employer can make an appeal to the Board by filing an Exception to the ALJ’s report.
     
  4. If the Board upholds the ALJ’s report and issues a final order, the employer can appeal to a state Circuit Court. This appeal may be filed in the county in which the employer resides or has a principal place of business, or in Ingham County. It must be filed within 60 days after the mailing of the Board’s decision, or within 60 days of the Board’s denial of a request for a rehearing. The filing of this appeal does not automatically stay enforcement of the citation or order.
     
    The Circuit Court appeal is limited to the record made before the administrative agency; new evidence may not be submitted to the court. The Board’s decision may be reversed by the court if it determines that the decision was:
     
    • In violation of the Constitution or a statute.
    • In excess of the agency’s authority or jurisdiction.
    • Made under an unlawful procedure which prejudiced the employer.
    • Not supported by competent, material, and substantial evidence.
    • Arbitrary, capricious, or was clearly an abuse of discretion.
    • Affected by other substantial and material errors of law.
     
  5. The court may affirm or reverse the Board’s decision, or it may remand the case back to the Board for further proceedings. The circuit court decision may be appealed to the Michigan Court of Appeals. The Court of Appeals has discretion as to whether to hear the appeal.

Excerpted from the Employment Law Handbook: Employer & Employee Protections Safety & Health Issues chapter, written by Doug Crim of Miller Canfield.

Join us for the Safety & Health Programs: MIOSHA Compliance seminar on September 28, 2017 in Lansing with Doug Crim.